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Wednesday, 11 May 1921


Senator ELLIOTT (Victoria) . - I have a suggestion to put to the Committee' which I think will cover most of the ground, and which may allow Senator Gardiner to withdraw his amendment in favour of the one I am now suggesting. My first proposal is to strike out the word " murder ", and the words, " within the limits of the Commonwealth", thus restoring section 98 to its original form.


Senator Pearce - That would be just as unfair to honorable senators as was Senator Gardiner's first proposition.


Senator ELLIOTT - I do not think so. I also propose moving for the insertion of a new proviso, to read-

Provided that where any person on active service commits an offence which by the laws of the State in which he enlisted would be murder, he may be tried by court martial and the sentence of such offence may be similar to that provided by the laws of that State, and the accused shall have the same right of appeal to a Court of criminal appeal as he has under the laws of a State.

Certain States have provided a Court of criminal appeal for their citizens in murder charges, and I think it desirable that all States should have such a provision.


Senator PRATTEN (NEW SOUTH WALES) - Would not that be ponderous during a state of war?


Senator ELLIOTT - No; because when a man commits murder his services are lost to the Forces. At the present time when a man is charged with a capital offence he is arrested, tried, and convicted and sent back to Australia under escort.


Senator Cox - If a man were convicted of murder by a court martial and the sentence could not be carried out on a battlefield, he would have to be sent to Australia and all his witnesses would have to accompany him.


Senator ELLIOTT - No. A Court of criminal appeal does not re-hear the case. The "depositions are taken down and transmitted to the Court, which decides on points of law whether or nor a murder was committed. The Court may decide that it is only a case of manslaughter.


Senator E D MILLEN (NEW SOUTH WALES) - And may order a new trial.


Senator ELLIOTT - Quite so. If the Supreme Court of a State decides that a man should have a re-trial, he ought to have.it.


Senator Cox - We would have to bring his witnesses, and during that time they would not be of any use to the Army.


Senator ELLIOTT - Would the honorable senator say that when the highest Courts of the land decide that a man is entitled to a new trial he should be prevented from having a. new trial?


Senator Cox - All his witnesses would have to be sent out with him.


Senator Pearce - I rise to order. Senator Gardiner has submitted an amendment, the effect of which is to. determine whether the crime of murder and other crimes mentioned in the Act should or should not be punishable by death. The amendment suggested by Senator Elliott does not bear on the question, but relates to how such cases should be reviewed. I ask your ruling, sir, whether we are entitled, in discussing Senator Gardiner's amendment, to consider the question of the review of sentences.


The CHAIRMAN (Senator Bakhap - The question before the Chair is that "' the words proposed in Senator Gardiner's amendment be inserted." I understood that Senator Elliott was addressing himself to that question, and was merely suggesting an alternative method, in his opinion, of arriving at what Senator Gardiner desired.


Senator ELLIOTT - It is not exactly that.


The CHAIRMAN - The honorable senator had not proceeded sufficiently far to enable me to determine what he actually desires. So far as the honorable senator has gone he is in order.


Senator ELLIOTT - I desired, first of all, to give notice of an amendment so that I would not be precluded from moving it subsequently.


The CHAIRMAN - I cannot take a further amendment until that moved by Senator Gardiner has been disposed of.


Senator ELLIOTT - Then I understand, Mr. Chairman, that I shall have an opportunity of moving my suggested amendment at a later stage.


Senator Gardiner - Yes, after mine has been defeated or carried.


Senator ELLIOTT - I thought that perhaps, in view of the amendment which I proposed to move, Senator Gardiner might consider that it would meet the case.


Senator Pearce - It does not meet his case.


Senator Gardiner - I want to test the feelings of the Committee on the abolition of the death sentence.







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